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Roy Moore's 2015 Child Rapist Appeal Dissent Controversy

By George Khoury, Esq. on November 14, 2017 | Last updated on March 21, 2019

An Alabama Supreme Court decision from 2015 may have flown under the radar at the time it was issued, but then-Chief Justice Roy Moore's dissent is coming back to haunt the now-Republican Senate candidate.

The majority decision upheld the conviction of a 17-year-old child rapist (that was working at a daycare when he committed his crime) on one charge that required "forcible compulsion" to be proven. But Moore, alone out of the nine justices, dissented based upon a strict textualist approach that seemingly ignored the actual facts and court precedent.

As some commentators have noted, this case probably has less to do with Moore's own history, and more to do with his personal philosophy. Moore's dissenting opinion did not let the defendant off the hook for his crimes and shouldn't be used as evidence that Moore is soft on crime. In fact, one of the charges that resulted in a conviction and 20+ year sentence against the defendant was not even considered on appeal, so it's not like Moore was trying to get the guy out of jail.

Textualist to a Fault?

A close reading of the appellate decision might give one pause, as it seems that Chief Justice Moore dissented without actually reviewing the facts of the case, or carefully reading the majority opinion.

In Moore's dissent, he explains that under state law, the term "forcible compulsion" was specifically defined as: "Physical force that overcomes earnest resistance or a threat, express or implied, that places another person in fear of immediate death or serious physical injury to himself or another person." He further explains that the court has previously held that the implied threat can be inferred in cases "concerning the sexual assault of children by adults with whom the children are in a relationship of trust."

The Facts Actually Matter More

While Moore doesn't seem to disagree with the holding inferring an implied threat when a position of trust is involved, he appears to disagree with extending it to situations where a 17-year-old employee of a day care sexually assaults a minor under 12 years old, simply based on the fact that the defendant is a minor and not an adult. He also relies on the fact that another law criminalizes the "juvenile" defendant's conduct at issue to support his belief that the court is improperly legislating by applying the court's own precedent.

To emphasize his disagreement, Moore asserts that the court "has potentially opened the door to cases in which a 10-year-old could be convicted of 'first-degree sodomy by forcible compulsion' for intercourse with an 8-year-old, or a 6-year-old with a 4-year-old, or a 16-year-old with a 14-year-old." But what the dissent seems to fail to grasp was that the majority specifically emphasized the position of authority that the defendant had (as an employee of the daycare) over his age, and the fact that the young victim viewed the defendant as a person in a position of authority.

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